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IN-DEPTH: Companies fight abortion mandate
Posted on Jan 28, 2013 | by Jamie Dean

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WASHINGTON (BP) -- Chris and Paul Griesedieck know how to crush just about anything.

The brothers and owners of American Pulverizer in St. Louis run the company their great-grandfather started nearly 105 years ago to compress coal for the burgeoning coal mining industry. A century later, the Griesediecks and 150 employees manufacture massive machines with names like jaw crushers and hammermills that pulverize everything from iron clips and water heaters to car engines and wooden pallets. And they still crush plenty of coal.

But these days, the crushers worry about being crushed. The looming threat to the family business doesn't come from competition. Instead, it comes from the machinery of the federal government.

That's because the government says the Griesediecks must do something that violates their Christian beliefs: Pay for so-called "emergency contraception" in their health insurance plan for employees. The Department of Health and Human Services (HHS) issued the mandate last year as part of the health care bill President Obama signed into law in 2010.

The health care law requires employers with more than 50 full-time workers to provide insurance to their employees or face fines. The HHS mandate requires employers to provide a range of "preventative services" in those insurance plans, including birth control pills, sterilization, and "emergency contraception" that can act as abortion-inducing drugs.

Companies that don't offer the drugs face crushing fines: $100 a day per employee. For the Griesediecks and their 150 workers, those fines could soar to more than $5 million a year. For a company with 13,000 employees like craft retailer Hobby Lobby -- another Christian-owned corporation opposing the mandate -- the burden is even heavier: Fines could reach $1.3 million a day.

Like Hobby Lobby and other plaintiffs, the Griesediecks filed a lawsuit against HHS. They say the mandate violates the Religious Freedom Restoration Act (a law designed to protect against government infringement of religious freedom) and their First Amendment rights to free exercise of religion. The brothers made a simple argument based on Christian principles: "It would be sinful for us to pay for services that have a significant risk of causing the death of embryonic lives."

The government doesn't have much sympathy. In a slew of similar cases filed by for-profit companies against the HHS mandate, government attorneys have argued that for-profit, secular companies don't engage in any exercise of religion protected by the First Amendment.

Frank Manion -- an attorney at the American Center for Law and Justice -- represents the Griesediecks, and says the federal government is imposing a stark choice on his clients and all Christian employers who oppose the mandate: "Abandon their beliefs in order to stay in business, or abandon their business in order to stay true to their beliefs."

At least 14 for-profit companies have filed suit against HHS, saying the mandate violates their religious freedom. Courts have granted preliminary injunctions to nine of those companies -- including the Griesediecks' -- shielding them against the mandate as their cases continue through the courts. Other judges denied similar protections to Hobby Lobby and four other companies.

Though only a handful of for-profit companies have filed suit, the mandate applies to all employers providing insurance. That means potentially thousands of companies owned by Christians may grapple with the law's requirements.

So far, most of the for-profit companies filing suit are Catholic-owned and opposed to providing any of the services in the mandate, including birth control pills. Evangelicals own at least four of the companies, and don't oppose offering birth control, but refuse to pay for "emergency contraception" like the "morning-after" and "week-after" pills.

For both groups, the implications are huge: Will the government allow business owners the basic freedom to maintain Christian principles in the workplace?

For the thousands of middle-class employees working for such companies, another question arises: Will the federal government crush their jobs by crushing their employers?

Matt Bowman of Alliance Defending Freedom (ADF) -- a group representing several plaintiffs -- says the issue is likely headed to the Supreme Court, and the outcome could affect religious freedoms for all Christians who believe their faith extends to every area of life: "The question becomes: Is Jesus Christ the Lord of all human life or not? And the federal government is saying He isn't allowed to be."

For the owners of Christian companies embroiled in one of the country's most important religious liberty issues of the new century, faith isn't an activity the government can sequester to Sundays.

"You have to practice what you preach," says Paul Griesedieck. "And you have to live your belief seven days a week."

That may seem like an obvious tenet of Christianity, but the plight of Christian-owned, for-profit companies is underscored by another reality: The government is oppressing non-profit religious institutions as well.

A narrow exception to the HHS mandate applies mostly to churches, freeing them from the requirement. But for other non-profit religious employers -- like Christian colleges and Catholic hospitals -- the mandate still applies with a deadline of August 2013 to comply.

More than 80 such organizations have filed suit against HHS, and at least two have made significant progress: In December, a federal appeals court reinstated the lawsuits of the evangelical Wheaton College and the Catholic-based Belmont Abbey College -- both represented by the religious liberty firm Becket Fund. (Courts had dismissed the lawsuits in August, saying the litigation was premature.)

HHS attorneys said the government intended to issue a new exception that would protect colleges like Wheaton and Belmont Abbey, but judges demanded action: HHS must update the court every 60 days until it publishes a new exception for religious institutions. The government said it would propose new language by the end of March. For now, it's unclear how far a new exception might reach.

While the decision was a victory for religious non-profits, it offers no protection to owners of for-profit companies with similar religious convictions. For them, the mandate applies now unless they win a court injunction. And exceptions aren't on the horizon.

That has led more than 14 for-profit companies to file suit, including four owned by evangelicals. One of those companies -- Tyndale House Publishers -- is a for-profit corporation, but clearly religious in nature: The evangelical company publishes Bibles and Christian books. (And the company directs most of its profits to non-profit causes.)

ADF attorney Matt Bowman won a preliminary injunction on Tyndale's behalf in November and said, "Bible publishers should be free to do business according to the book that they publish." The court agreed in its written opinion: "... the beliefs of Tyndale and its owners are indistinguishable."

The same reality seems obvious for other evangelical-owned companies as well. Perhaps the highest-profile case is Hobby Lobby -- the massive craft retailer with 520 stores in 41 states. The Oklahoma-based company averages $3 billion in sales each year, according to Forbes, and owner and CEO David Green ranks No. 79 on the magazine's list of the 400 richest Americans. The publication estimates Green's net worth at $4.5 billion. It also notes Green's vast giving to Christian ministries like the OneHope Foundation and Every Home for Christ, and estimates his lifetime giving at $500 million.

Indeed, Hobby Lobby's website says the company is committed to "honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles."

To that end, the stores close on Sundays so employees may rest and participate in worship. The company publishes full-page ads in newspapers at Christmas and Easter with Christian messages. And it starts its pay for full-time employees at 80 percent above minimum wage. Green says it would violate his Christian beliefs to pay for "emergency contraception" that could cause abortions. The company filed suit against HHS in September.

The government contends the required "emergency contraception" drugs aren't abortifacients. But the FDA label on the morning-after pill known as "Plan B" notes the drug "may inhibit implantation" of a fertilized egg.

Since pro-life proponents define fertilization of an egg as the beginning of a pregnancy, they label "Plan B" and Ella -- a similar drug that can be effective five days after unprotected sex -- as abortifacients. The law also requires coverage of intrauterine devices (IUDs) that may block implantation of fertilized eggs.

Meanwhile, Plan B is available over the counter, and many county health clinics and Planned Parenthood offices offer emergency contraception at no cost, low cost, or on a sliding scale depending on income.

Despite the threat that the IRS would levy massive fines (up to $1.3 million a day) for non-compliance, Green said the company wouldn't offer the drugs: "We simply cannot abandon our religious beliefs to comply with this mandate."

Less than three months later, U.S. District Judge Joe Heaton denied Hobby Lobby's request for a preliminary injunction, and the Supreme Court refused to provide an emergency stay as the case proceeds through the lower courts.

In his ruling, Heaton said Hobby Lobby and its sister company Mardel -- a Christian publishing house -- are "not religious organizations." The judge said the court had not found a case establishing that "secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion."

That argument may prove the central issue in each of the for-profit cases, and will likely culminate with the Supreme Court ruling on whether for-profit companies have the right to free exercise of religion. Considering the court's decision in Citizens United that companies have a right to free speech, many attorneys say First Amendment rights to free exercise of religion should be implicit.

For now, Hobby Lobby announced it has found a way to "shift the plan year" for its insurance coverage, shielding the company from fines for a few months. (The fines are effective when a company renews its insurance plan, though it's unclear how and when the IRS would levy the fees.)

Still, the threat remains for Green and the thousands of middle-class workers he employees in a struggling economy. Though the CEO is declining interviews while his case proceeds, in a USA Today opinion piece in September he wrote about his convictions: "... honoring God is more important than turning a profit."
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Jamie Dean writes for World News Service, where this story appeared. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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